Green v. Scott, 4:94-CV-632-A.
| Decision Date | 22 September 1994 |
| Docket Number | No. 4:94-CV-632-A.,4:94-CV-632-A. |
| Citation | 863 F. Supp. 376 |
| Parties | Ricky Lee GREEN, Petitioner, v. Wayne SCOTT, Director, Texas Department of Criminal Justice, Institutional Division, Respondent. |
| Court | U.S. District Court — Northern District of Texas |
John Jacks, Atty. Gen. of Texas, Enforcement Div., Austin, TX, Lynn Lamberty, Anthony S. Haughton, Law Office of Anthony Haughton, Houston, TX, Robert Ford, Law Office of Robert Ford, Fort Worth, TX, for petitioner.
Ricky Lee Green, pro se.
Margaret Portman Griffey, Office of the Atty. Gen., John Jacks, Atty. Gen. of Texas, Enforcement Div., Austin, TX, for respondent.
The court has received and considered the pro se motion of petitioner, Ricky Lee Green, ("Green") for appointment of counsel and for stay of execution, the response of respondent, Wayne Scott, Director, Texas Department of Criminal Justice, Institutional Division, ("respondent") to such motion, and Green's motion for leave to proceed in forma pauperis. The court heard from the parties in reference to such motions by telephone conference held September 20, 1994, in which the court, Green, Robert Ford ("Ford"), former counsel for Green, Lynn B. Lamberty ("Lamberty"), an attorney with the Texas Resource Center ("Center"), and John Jacks, as counsel for respondent, participated, and another telephone conference held September 21, 1994, in which those same parties, Anthony Haughton ("Haughton"), an attorney formerly with Center, and Eden Harrington, an attorney with Center, participated. During the September 21 telephone conference, the court announced the rulings that are set forth in this memorandum opinion and order.
The court is satisfied from the affidavit Green submitted with his motion for leave to proceed in forma pauperis that Green is financially qualified thus to proceed. Therefore, the court is ordering that Green be permitted to file his pro se motion without payment of costs and otherwise to proceed in this cause as an indigent.
In October 1990 Green was adjudged guilty by the 167th District Court of Travis County, Texas,1 of the offense of capital murder and was sentenced to death.2 His conviction was affirmed by an opinion of the Court of Criminal Appeals of Texas on December 9, 1992. Rehearing was denied January 27, 1993. The Supreme Court of the United States denied certiorari on June 21, 1993.
Ford was appointed by the state trial court to represent Green in post-affirmance matters. On January 20, 1994, Green, through Ford, filed an application for writ of habeas corpus in the state court, which, together with later filed supplements, raised fourteen grounds for relief. By order signed March 28, 1994, the state trial court recommended that all relief sought by the writ be denied. All such relief was denied on April 19, 1994, by order of the Court of Criminal Appeals of Texas. The motions that are being dealt with by this memorandum opinion and order were not filed until September 19, 1994.3 They were filed only two weeks before Green's scheduled execution date, October 4, 1994.
Since early 1993 Center has been involved in Green's case, consulting with Green and consulting and working with, and providing recommendations to, counsel for Green. Center's function is to provide representation to persons who are under death penalty in the State of Texas and to perform other functions on behalf of such persons, such as locating other attorneys to provide representation if Center does not directly provide it and working and consulting with, and giving advice to, the other attorneys who directly provide representation. Its attorney personnel consist of sixteen attorneys who are licensed to practice and two who have not been licensed. Shortly after it became involved in Green's case, Center obtained a copy of the state court record of the case. At least one of the attorneys on its staff, Haughton, has studied the record; and, Haughton and another attorney on its staff, Lamberty, have maintained close contact with Green and Ford and worked closely with Ford in the preparation and pursuit of Green's state court application for writ of habeas corpus.
In April 1994, once the state court application for writ was denied, Green expressed dissatisfaction with Ford, and the decision was made that Ford no longer would provide representation to Green. That decision was promptly made known to Center and Lamberty. Center has considered itself to be Green's attorney whenever he was not being represented by another attorney, and Green has understood that Center was his attorney when he was without another attorney.
Starting in the spring of 1994, Center has sought an outside attorney to take over the direct representation of Green, but without success.4 At all times since the filing of a federal application for writ of habeas corpus by Green would have been appropriate, starting in the spring of 1994, Center has had the resources and knowledge to prepare and file such an application. The nature and extent of its knowledge and resources would have enabled it to prepare and file such an application in a very short period of time. Center prepared the pro se motion for appointment of counsel and stay of execution that is now before the court and filed it for Green after he signed it.
The court has determined to grant Green's motion for appointment of counsel to the extent, and on the conditions, set forth in this memorandum opinion and order. Lamberty has been selected to serve as the attorney to be appointed for Green because of the special knowledge Lamberty has of Green's case, the extensive knowledge Lamberty has of the law applicable to death penalty matters, and the broad experience he has had in the handling of applications for relief in death penalty cases, including matters brought and prosecuted in federal courts.5 During the September 20 telephone conference, Green expressed ongoing dissatisfaction with Ford and said that he did not want Ford to serve as his attorney,6 Green does not have the right to select court-appointed counsel, but the court has taken his wishes into account. During the September 21 telephone conference he expressed complete satisfaction with the legal representation Center, Lamberty, and Haughton have provided him.
While Lamberty might be lacking the precise qualifications contemplated by 21 U.S.C. § 848(q)(6), the court finds that there is good cause for appointing Lamberty. The court finds that Lamberty's background, knowledge, and experience enable him to properly represent Green, with due consideration to the seriousness of the death penalty Green faces and to the nature of Green's case. Thus, appointment of Lamberty is authorized by 21 U.S.C. § 848(q)(7).
The court is appointing Ford and Haughton to provide consultation to Lamberty because of the knowledge and experience they have in reference to Green's case. The background, knowledge, and experience of Ford and Haughton qualify them to properly represent Green by providing assistance to Lamberty in performance of those things Lamberty is being appointed to do on behalf of Green, giving due consideration to the seriousness of Green's death penalty and the nature of Green's case.
The court finds that, if Lamberty works with appropriate diligence between now and the deadline fixed by this order for the filing of a 28 U.S.C. § 2254 application for writ of habeas corpus for Green, he will have ample time within which to prepare and file an application that would properly present to the federal courts all grounds for relief that legitimately should be presented in federal court on behalf of Green. If there otherwise were the potential that Lambert would have any difficulty meeting the deadline fixed by this memorandum opinion and order, that potential would be averted by the consultation services he is at liberty to obtain from Ford and Haughton pursuant to the terms of the order. The court expects Ford and Haughton to be accessible to Lamberty at all times between now and such deadline for consultation purposes; and, the court anticipates that the consultation services to be provided to Lamberty by Ford and Haughton will include, but not be limited to, any assistance Lamberty seeks in gaining an understanding of the record of the state court proceedings in which Green was involved, legal research requested by Lamberty, drafting of language for legal documents if Lamberty requests, reviewing drafts of documents prepared by Lamberty if he requests, and commenting, at the request of Lamberty, on possible courses of action. However, Lamberty has the final and ultimate responsibility to do those things required to be done pursuant to this memorandum opinion and order on behalf of Green.
The court is limiting the scope of the representation that Lamberty, Ford, and Haughton are to provide to Green pursuant to the appointments made by this memorandum opinion and order to the preparation, filing, and pursuit of (1) a 28 U.S.C. § 2254 application for writ of habeas corpus for Green by which only grounds for relief that have been exhausted in the courts of the State of Texas will be asserted and (2) motions in the federal courts related to such an application, including motions for stays of execution through the federal court system. The appointments of Lamberty, Ford, and Haughton are being made pursuant to the directive given by the Supreme Court in McFarland v. Scott, ___ U.S. ___, ___ - ___, 114 S.Ct. 2568, 2572-73, 129 L.Ed.2d 666 (1994). Nothing in the McFarland opinion suggests that such an appointment should be broad enough to include performance by appointed counsel, pursuant to the appointment, of services on behalf of the inmate directed to grounds for...
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